HomeMy WebLinkAboutRe Specimen Tree at 139 oak Ln (3)Okay.
Sent iPhone (please excuse errors)
On Mar 12, 2015, at 5:16 PM, Todd Morley
<T.Morley@cityofcapecanaveral.org
<mailto:T.Morley@cityofcapecanaveral.org> > wrote:
Anthony,
The City Arborist got back with me today about the interpretive
issue we spoke about regarding bifurcated specimen trees.
The bottom line is: it is a specimen tree regardless.
We will proceed as discussed and will keep you apprised.
Thanks,
Todd
Todd Morley, Director
Economic Development Dept.
City of Cape Canaveral
105 Polk Ave.
P.O. Box 326 Cape Canaveral, FL 32920
(321) 868-1220 x 330
t.morley@cityofcapecanaveral.org
<mailto:t.morley@cityofcapecanaveral.org>
www.cityofcapecanaveral.org
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“If it is to be, it is up to me”
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From: Anthony A. Garganese [mailto:agarganese@orlandolaw.net]
Sent: Friday, February 20, 2015 11:51 AM
To: Todd Morley
Subject: RE: Specimen Tree at 139 oak Ln
Yes. They have two distinct, but related problems; (1)
remediation for the removal of the specimen tree; and (2) code
enforcement. Both have to be resolved. Hopefully, you can resolve
cumulatively in one settlement prior to going to the code board.
<image004.gif>
Anthony A. Garganese, Managing Shareholder
Board Certified City, County & Local Government law
111 N. Orange Avenue, Suite 2000
Orlando, Florida 32801
P.O. Box 2873 (32802-2873)
Phone (407) 425-9566
Fax (407) 425-9596
Kissimmee (321) 402-0144
Cocoa (866) 425-9566
Ft. Lauderdale (954) 670-1979
Website: www.orlandolaw.net
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Email: agarganese@orlandolaw.net
<mailto:agarganese@orlandolaw.net>
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From: Todd Morley [mailto:T.Morley@cityofcapecanaveral.org]
Sent: Friday, February 20, 2015 11:06 AM
To: Anthony A. Garganese
Subject: Re: Specimen Tree at 139 oak Ln
Anthony,
Ok. That would get us to:
• 92 inches (46 dbh x 2) of trees planted, or
• $4600 contribution to the tree bank @ $50 per inch
(92x50=$4600), or
• A combination of plantings and tree bank contribution.
Including the $5000 authorized by 162 and the $500 penalty, we
have a starting point demand of just over $10K.
Am I on track?
Thanks
Todd
Todd Morley, Director
Economic Development Dept.
City of Cape Canaveral
110 Polk Ave.
P.O. Box 326
Cape Canaveral, FL 32920
(321) 868-1222 x14
t.morley@cityofcapecanaveral.org
<mailto:t.morley@cityofcapecanaveral.org>
www.cityofcapecanaveral.org
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On Feb 19, 2015, at 2:59 PM, Anthony A. Garganese
<agarganese@orlandolaw.net <mailto:agarganese@orlandolaw.net> > wrote:
Todd, given the developer must remove the specimen tree
under the circumstances, my thought regarding remediation is to use
102-41(b). That section provides that the city has a right to impose
remediation for the removal of a specimen tree at a maximum 2 to 1 ratio
per dbh. As such, take the dbh of the removed tree and multiply by 2 as
a starting point demand.
Notwithstanding any other provision of this division,
specimen trees shall not be removed except for extraordinary
circumstances and hardships and only by final permit approved by the
city council. As a condition of removal of any specimen tree, the city
council shall have the right to require that replacement trees be
planted or a contribution to the tree bank be made in accordance with
section 102-43
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except replacement and/or tree bank contribution shall be based on a
maximum of a two-to-one ratio of cumulative diameter (dbh) basis of
specimen trees removed using the data in Table 1.
Regards,
Anthony A. Garganese
Sent from IPad
On Feb 19, 2015, at 1:51 PM, Todd Morley
<T.Morley@cityofcapecanaveral.org
<mailto:T.Morley@cityofcapecanaveral.org> > wrote:
Anthony,
Thanks. Additionally, Section 102-38(b)(1)
imposes a $500 fine for the removal of a specimen tree.
Trying to apply remedial requirements is
challenging.
Section 102-49(b) requires a restoration plan
and gives three choices:
1. Replacement of same size tree (not
practical at 46” dbh), or
2. A 4X payment to the tree bank. However,
for this size of tree, there is no dollar amount provided. The table
says “To be preserved”.
3. Planting four desirable species in
accordance with section 102-54. However, for this size of tree, there
is no number of replacement trees specified. The table says “To be
preserved”.
I’m trying to arrive a logical, reasoned
approach to remediation.
Any help? I am available to discuss today
Todd
Todd Morley, Director
Economic Development Dept.
City of Cape Canaveral
105 Polk Ave.
P.O. Box 326 Cape Canaveral, FL 32920
(321) 868-1220 x 330
t.morley@cityofcapecanaveral.org
<mailto:t.morley@cityofcapecanaveral.org>
www.cityofcapecanaveral.org
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“If it is to be, it is up to me”
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From: Anthony A. Garganese
[mailto:agarganese@orlandolaw.net]
Sent: Friday, February 13, 2015 5:57 AM
To: Todd Morley
Cc: David Dickey; David Greene
Subject: RE: Specimen Tree at 139 oak Ln
Importance: High
Todd,
I’ve given this one some significant thought.
It appears that the developer intentionally damaged the tree before
applying for the requisite tree removal permit. The tree now appears to
be so far damaged and so close to the structure under construction that
it must come down or the structure removed in favor of trying to save
the tree that will forever be disfigured. As such, at this stage of
your investigation and case study, this appears to be a classic case of
an intentional violation of the City Code which is irreparable or
irreversible. Therefore, one approach to take is as follows:
1. Due to the intentional damage of the
tree, the tree no longer fits the definition of a specimen tree. As
such, the final removal of the tree does not require City Council
approval. However, as you pointed out, the violation requires that
Staff impose remedial action upon the developer under section 102-41.
2. In addition, and in conjunction with the
remedial action, Staff should promptly serve upon the developer a notice
of code violation for the intentional violation of the tree ordinance
and seek a fine not to exceed $5,000 for an irreparable or irreversible
violation of the City Code. Section 162.09(2)(a), Florida Statutes
provides:
A fine imposed pursuant to this section shall
not exceed $250 per day for a first violation and shall not exceed $500
per day for a repeat violation, and, in addition, may include all costs
of repairs pursuant to subsection (1). However, if a code enforcement
board finds the violation to be irreparable or irreversible in nature,
it may impose a fine not to exceed $5,000 per violation.
(b) In determining the amount of the fine, if
any, the enforcement board shall consider the following factors:
1. The gravity of the violation;
2. Any actions taken by the violator to correct
the violation; and
3. Any previous violations committed by the
violator.
3. You did not indicate in your email
whether the construction has been completed and a certificate of
occupancy issued by the City. If the certificate of occupancy has not
been issued, the City should seriously evaluate whether it should
require the developer to complete the remedial action and payment of the
code enforcement fine PRIOR to issuance of the certificate of occupancy
or prior to issuing any other final building inspections on the project.
Once the notice of code violation is served, you could attempt to settle
(payment in full in exchange for a release) the fine issue and dismiss
the case before the matter is actually heard by the Code Board in order
to expedite a final resolution of the matter. However, any agreed upon
settlement should be approved by the City Manager using the $5,000 cap
and factors stated above and should be commensurate with the egregious
nature of the violation that resulted in adversely affecting the
Council’s jurisdiction to make determinations regarding the protection
of specimen trees. The later point cannot be overemphasized because if
this situation were to frequently occur without appropriate sanctions
imposed by the City, the Council’s jurisdiction over these matters could
be severely diminished if developers found it easier to pay a small
penalty than protecting specimen trees as required by City Code.
If you have any questions on this matter, please
follow-up with a phone call so we can talk it through.
Regards,
Anthony
<image005.gif>
Anthony A. Garganese, Managing Shareholder
Board Certified City, County & Local Government
law
111 N. Orange Avenue, Suite 2000
Orlando, Florida 32801
P.O. Box 2873 (32802-2873)
Phone (407) 425-9566
Fax (407) 425-9596
Kissimmee (321) 402-0144
Cocoa (866) 425-9566
Ft. Lauderdale (954) 670-1979
Website: www.orlandolaw.net
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Email: agarganese@orlandolaw.net
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From: Todd Morley
[mailto:T.Morley@cityofcapecanaveral.org]
Sent: Tuesday, February 10, 2015 2:04 PM
To: Anthony A. Garganese
Cc: David Dickey
Subject: RE: Specimen Tree at 139 oak Ln
Anthony,
Any news on this one?
Thanks,
Todd
Todd Morley, Director
Economic Development Dept.
City of Cape Canaveral
105 Polk Ave.
P.O. Box 326 Cape Canaveral, FL 32920
(321) 868-1220 x 330
t.morley@cityofcapecanaveral.org
<mailto:t.morley@cityofcapecanaveral.org>
www.cityofcapecanaveral.org
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From: Anthony A. Garganese
[mailto:agarganese@orlandolaw.net]
Sent: Tuesday, January 27, 2015 9:28 AM
To: Todd Morley
Cc: Anthony Garganese; David Dickey
Subject: Re: Specimen Tree at 139 oak Ln
Hi Todd. I remember when it was pulled. I need
to analyze this situation and the applicable code provisions because I
see a potential overlap of jurisdictional duties between the code board
and council that I want to think through. I'll be in touch.
Regards,
Anthony A. Garganese
Sent from IPad
On Jan 27, 2015, at 8:46 AM, Todd Morley
<T.Morley@cityofcapecanaveral.org
<mailto:T.Morley@cityofcapecanaveral.org> > wrote:
Anthony,
You may recall that an item was pulled
from the December City Council agenda.
It was a request for Council to approve
the removal of a specimen tree at 139 Oak Ln.
Background:
A building permit application was filed
with the City to construct a new home. The submittal included plans and
a survey showing the intended location of the house.
The tree in question was indicated on
the survey as being in the proposed rear yard.
Because of its distance from the
proposed structure (approx. 10 ft.) it appeared to be intended for
preservation.
There was no indication that it was
proposed for removal.
The building permit to construct the
home was issued.
Several weeks later, the footings were
dug and concrete forms were put in place.
As required, the developer called for a
slab inspection prior to pouring the concrete slab. He submitted the
required “Form-Board Survey”.
The Form-Board Survey (the 2nd survey
now submitted) again indicated that the tree was approximately 10 ft.
away from the structure.
However, during the site inspection it
was noted that the tree was actually less than one ft. away from the
structure (form boards were in place).
The developer was contacted. He
indicated that he would need to remove the tree. He was informed that
City Council approval would be required prior to removal because the
tree was a Specimen Tree.
The slab inspection was approved with
the understanding that developer would timely submit an application to
remove the tree.
He subsequently submitted the attached
tree removal permit application. Staff prepared the attached Agenda
Cover Sheet.
The item was removed from the agenda
because it was discovered on the date of the Council meeting that the
developer had recently cut a large notch out of the side of the tree and
had removed more than 1/3 of the canopy to continue the construction of
the new home (concrete block walls were now up and the roof structure
was complete).
The City Arborist was requested to
inspect the damage to the tree.
He reported that:
· The notching alone would not
kill the tree,
· The tree was so close to the
structure that it could cause damage to the structure,
· More than 1/3 of the canopy had
been removed,
· 24” of fill dirt was placed
around the house foundation and the base of the tree, and
· The combination of all of these
items will affect the overall life span of the tree.
These findings indicate violations of a
number of code sections [Sec. 102-44(d), (g) and (h)].
In a normal situation, the survey would
have accurately depicted the proximity of the tree to the proposed
structure and the developer would have indicated the need for removal
and applied for City Council approval prior to commencing construction.
When asked to explain the course of events, the developer indicated
that:
· He was unaware of the error in
the surveys until the form boards were in place.
· It was at that time that he
realized the tree needed to be removed.
· He continued construction
despite the pending approval, assuming the Council would approve the
removal of the tree.
Where to go from here.
Sec. 102-41 states:
(b) Notwithstanding any other provision
of this division, specimen trees shall not be removed except for
extraordinary circumstances and hardships and only by final permit
approved by the city council. As a condition of removal of any specimen
tree, the city council shall have the right to require that replacement
trees be planted or a contribution to the tree bank be made in
accordance with section 102-43, except replacement and/or tree bank
contribution shall be based on a maximum of a two-to-one ratio of
cumulative diameter (dbh) basis of specimen trees removed using the data
in Table 1.
It is probably a forgone conclusion that
City Council would approve the removal. After all, the tree is so close
to the house that it is going to have to be removed.
Council would certainly require
mitigation.
Are you of any other avenue whereby this
item could be a straightforward Code Enforcement process (without
Council involvement)?
Sec. 102-49 – Remedial Action - provides
a method for Staff to deal with violations.
I look forward to discussing with you.
Todd
Todd Morley, Director
Economic Development
City of Cape Canaveral
110 Polk Ave.
P.O. Box 326 Cape Canaveral, FL 32920
(321) 868-1222 x14 (321) 868-1247
(fax)
t.morley@cityofcapecanaveral.org
<mailto:t.morley@cityofcapecanaveral.org>
www.cityofcapecanaveral.org
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“If it is to be, it is up to me”
From: Jeff Ratliff
Sent: Thursday, January 15, 2015 2:57 PM
To: Todd Morley
Cc: Kay McKee; Tim Davis
Subject: RE: Specimen Tree at 139 oak Ln
Todd:
I spoke with Kay and Tim:
Tim was asked to do a follow-up
inspection of the specimen oak tree at 139 Oak Lane. The construction
company at the property had to cut a notch in the trunk of the oak tree
to finish the construction of the house. The question is - will these
activities kill the oak tree? The notch alone will not kill the tree,
but the construction company also cut more than 1/3 of the canopy. Fill
dirt was also placed around the house foundation and the base of the
tree. The combination of all of these items will affect the overall life
span of the tree.
Also:
1). Cutting more than 1/3 of the canopy
of an oak tree at one time is not good practice.
2). Changing the original grade more
than six inches around the base of a tree can affect its health – the
construction company raised the grade approximately 24 inches.
All of these items may not kill the
tree, but will most likely affect the life span of the oak tree.
Thanks,
Jeff
From: Todd Morley
Sent: Thursday, January 15, 2015 11:25
AM
To: Jeff Ratliff
Subject: FW: Specimen Tree at 139 oak Ln
Jeff,
I would like to talk with you about
this.
Are you available for a call?
Todd
Todd Morley, Director
Community & Economic Development Dept.
City of Cape Canaveral
110 Polk Ave.
P.O. Box 326 Cape Canaveral, FL 32920
(321) 868-1222 x14 (321) 868-1247
(fax)
t.morley@cityofcapecanaveral.org
<mailto:t.morley@cityofcapecanaveral.org>
www.cityofcapecanaveral.org
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“If it is to be, it is up to me”
From: Tim Davis
Sent: Friday, December 19, 2014 9:00 AM
To: Todd Morley; Michael German
Subject: Specimen Tree at 139 oak Ln
Good morning,
This e-mail is for the follow up
inspection of the specimen tree.You were concerned about the notch cut
out of the trunk next to the roof. I don’t think the notch or the
trimming they have done will kill the tree and have not seen any die
back in the canopy. The tree is so close to the house it could cause
problems to the roof or foundation in the future. If you need any more
information, please call me(321-863-7341).
Thanks,
Tim Davis
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Florida has a very broad public records
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City of Cape Canaveral officials and employees will be made available to
the public and/or media upon request, unless otherwise exempt. Under
Florida Law, email addresses are public records. If you do not want your
email address released in response to a public-records request, do not
send electronic email to this entity. Instead, contact our office by
phone or in writing
Florida has a very broad public records
law. As a result, any written communication created or received by the
City of Cape Canaveral officials and employees will be made available to
the public and/or media upon request, unless otherwise exempt. Under
Florida Law, email addresses are public records. If you do not want your
email address released in response to a public-records request, do not
send electronic email to this entity. Instead, contact our office by
phone or in writing
Florida has a very broad public records
law. As a result, any written communication created or received by the
City of Cape Canaveral officials and employees will be made available to
the public and/or media upon request, unless otherwise exempt. Under
Florida Law, email addresses are public records. If you do not want your
email address released in response to a public-records request, do not
send electronic email to this entity. Instead, contact our office by
phone or in writing
Florida has a very broad public records
law. As a result, any written communication created or received by the
City of Cape Canaveral officials and employees will be made available to
the public and/or media upon request, unless otherwise exempt. Under
Florida Law, email addresses are public records. If you do not want your
email address released in response to a public-records request, do not
send electronic email to this entity. Instead, contact our office by
phone or in writing
<Agenda Cover Sheet.docx>
<139 Oak Lane Attachments.pdf>
Florida has a very broad public records law. As
a result, any written communication created or received by the City of
Cape Canaveral officials and employees will be made available to the
public and/or media upon request, unless otherwise exempt. Under Florida
Law, email addresses are public records. If you do not want your email
address released in response to a public-records request, do not send
electronic email to this entity. Instead, contact our office by phone or
in writing
Florida has a very broad public records law. As
a result, any written communication created or received by the City of
Cape Canaveral officials and employees will be made available to the
public and/or media upon request, unless otherwise exempt. Under Florida
Law, email addresses are public records. If you do not want your email
address released in response to a public-records request, do not send
electronic email to this entity. Instead, contact our office by phone or
in writing
Florida has a very broad public records law. As
a result, any written communication created or received by the City of
Cape Canaveral officials and employees will be made available to the
public and/or media upon request, unless otherwise exempt. Under Florida
Law, email addresses are public records. If you do not want your email
address released in response to a public-records request, do not send
electronic email to this entity. Instead, contact our office by phone or
in writing
Florida has a very broad public records law. As
a result, any written communication created or received by the City of
Cape Canaveral officials and employees will be made available to the
public and/or media upon request, unless otherwise exempt. Under Florida
Law, email addresses are public records. If you do not want your email
address released in response to a public-records request, do not send
electronic email to this entity. Instead, contact our office by phone or
in writing
Florida has a very broad public records law. As a
result, any written communication created or received by the City of
Cape Canaveral officials and employees will be made available to the
public and/or media upon request, unless otherwise exempt. Under Florida
Law, email addresses are public records. If you do not want your email
address released in response to a public-records request, do not send
electronic email to this entity. Instead, contact our office by phone or
in writing
Florida has a very broad public records law. As a result, any
written communication created or received by the City of Cape Canaveral
officials and employees will be made available to the public and/or
media upon request, unless otherwise exempt. Under Florida Law, email
addresses are public records. If you do not want your email address
released in response to a public-records request, do not send electronic
email to this entity. Instead, contact our office by phone or in writing
Florida has a very broad public records law. As a result, any written
communication created or received by the City of Cape Canaveral
officials and employees will be made available to the public and/or
media upon request, unless otherwise exempt. Under Florida Law, email
addresses are public records. If you do not want your email address
released in response to a public-records request, do not send electronic
email to this entity. Instead, contact our office by phone or in writing
Florida has a very broad public records law. As a result, any written
communication created or received by the City of Cape Canaveral
officials and employees will be made available to the public and/or
media upon request, unless otherwise exempt. Under Florida Law, email
addresses are public records. If you do not want your email address
released in response to a public-records request, do not send electronic
email to this entity. Instead, contact our office by phone or in writing
Florida has a very broad public records law. As a result, any written
communication created or received by the City of Cape Canaveral
officials and employees will be made available to the public and/or
media upon request, unless otherwise exempt. Under Florida Law, email
addresses are public records. If you do not want your email address
released in response to a public-records request, do not send electronic
email to this entity. Instead, contact our office by phone or in writing
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